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Location: Home » Adjust newsletter » Comment : Appeals Service Discussion Document – The Adjudication Gap

Comment : Appeals Service* Discussion Document – The Adjudication Gap

(April 2006)

Nick Warren, Regional Chairman of the Appeals Service (North West Region), has written a review of recent changes in decision-making practices in the Department for Work and Pensions. His review was subsequently adopted as a discussion document by the President and Regional Chairmen of the Appeals Service and is reproduced by kind permission of the Appeals Service. It has also appeared in the Journal of Social Security Law (2006) 13 JSSL, Issue 2.

* The Appeals Service was renamed the Social Security and Child Support Appeals Tribunal following the launch of the Tribunals Service in April 2006.


This note on DWP decision making must start with an acknowledgement of how much we have learned from and benefited from generations of civil servants within DWP who have been dedicated to taking fair decisions within the law in relation to a citizen's right to social security. Some of these decisions are easy. Some are very difficult involving, for example, the EU rights of migrant workers; beneficial ownership of capital when trusts may have been informally created; the effect of depression on disability caused by physical illness; or whether a valid marriage was celebrated in the Yemen 30 years ago.

We are also conscious that we see, in tribunals, only a small fraction of the decisions which are taken – but we do see a lot of decisions from all parts of DWP. Nor do we see only those decisions which a claimant disputes; many appeals arise from the taking away of benefit already awarded – so it is routine for us to see decisions which might have been over-generous. In our view, there does exist now "an adjudication gap" between decision makers within DWP and the independent tribunals which is wider than it has been in the past; and is probably wider than it should be. The gap is unrelated to the tribunal's constitutional independence. It is a divergence in approach which arises from long term trends within DWP to downgrade adjudication and to withdraw from participation in the 'statutory machinery for deciding claims to benefit'.

DWP – an Internal Separation of Powers

The founders of the welfare state 50 years ago recognised that DWP's work involved at least 3 functions. There was the policy making in Whitehall; there was administration which took place in local offices up and down the country; and there was adjudication. Civil servants within the Department were called upon to make decisions about citizens' rights – especially in the context of the new National Insurance Scheme. Benefit claims would not be litigated in the ordinary courts; but they would be decided according to evidence and according to case law and this was not the same as taking decisions in accordance with government policy.

Of course many decisions were routine. They were taken at clerical level just as many can now be dealt with by a computer. It was recognised though that many decisions involved, not the processing of data, but deliberative work. Local "Insurance Officers" were appointed to do this work and they built up a reservoir of expertise not just in everyday decisions, e.g. on Incapacity for Work but also on the more difficult problems that came their way.

DWP was happy that the Insurance Officers, the local tribunals and the Commissioners should be referred to, as they were for years in the case law, as "the Statutory Authorities" and that the 3 levels of adjudication should be seen as performing, in different ways, the same role. To a limited extent, concern about tribunals reaching different decisions from the first tier adjudicator would have been thought misplaced. Often there is no "right" decision. Sometimes tribunals are "wrong". The system operates on the basis that fairness to citizens demands that they should lose only if both the tribunal and a government official say so.

The Insurance Officer regarded Commissioners' Decisions as tools of the trade. He or she, along with the local tribunal Chairman were the audience for the Commissioner's guidance. The importance of adjudication within DWP was formally recognised in the post of Chief Insurance Officer (later Chief Adjudication Officer). The CIO was physically distant from Whitehall and issued his own guidance. Traditionally the DWP appointed to the post someone who was a bit of a maverick; someone prepared to take their own line if the law required it.

Retreat from Adjudication

The high water mark of the priority attached to adjudication within DWP was probably reached in the mid-1980s by which time regional adjudication teams had been set up to strengthen adjudication for means tested benefits and a statute had been passed which put the tribunals firmly under judicial control. From about that time other considerations became dominant.

The job of Chief Adjudication Officer was repeatedly downgraded and the role reduced in practice to the production of an annual report on adjudication standards. The report recorded "error rates" not according to whether a decision was right or reasonable but according to whether it had been properly recorded. It was of little use.

DWP were rightly concerned about the quality of their administration and speed of processing. Adjudication was seen as inimical to good administration, instead of a partner to it. New styles of deciding claims treated adjudication as the mere processing of data compiled from a lengthy claim form. So visiting officers were practically abolished and standards fell;

Example

Mr and Mrs A were pensioners who applied for Income Support. When asked for their income they forgot to include the Retirement Pension thinking that DWP already knew about it. The claim was processed and paid as if Mr and Mrs A had been living on nil income for years and the couple were overpaid several thousand pounds.

In recent years the folly of over-reliance on data-processing has to some extent been acknowledged.

Another feature of the retreat from adjudication was reform of the law to try to avoid the need for judgement in deciding a claim.

So, for example, for donkey's years local officials had been able to backdate claims where it was reasonable to do so applying the test of whether or not the claimant had "good cause" for late claim. This harmless phrase was abolished and replaced by a complex set of rules for determining the date of a claim and whether or not it should be backdated. Inevitably the new complex rules did not have the flexibility of an adjudication on "good cause" and many examples of injustice resulted.

Similarly DWP introduced the All Work Test (now PCA) for Incapacity Benefit believing in vain that an "objective" answer could be supplied to the question whether a claimant satisfied any of the 112 descriptors which comprised the test. It was widely assumed within DWP at the time that hardly any appeals against the PCA would be likely to succeed.

DWP operations were divided into about half a dozen separate Agencies. No doubt this is beneficial but it left adjudication hopelessly fragmented with none of the Agencies on its own apparently able to establish its own culture of adjudication. Regional adjudication teams were disbanded.

Finally the Social Security Act 1998 abolished adjudication officers and the CAO. Adjudication was transferred to the Secretary of State although then, somewhat absurdly, it proved necessary to re-invent the title of "Decision Maker".

A Flight from Scrutiny

As adjudication became less and less valued within DWP so the idea of decision-makers forming part of "the Statutory Authorities" faded.

Rights of appeal, like adjudication, were perceived as a hindrance to the delivery of Departmental business. The PCA was one attempt to reduce the influence of the tribunal. In other cases the right of appeal was simply taken away, e.g. when hardship payments for 16 and 17 year olds were introduced into Income Support. The Council on Tribunals took the unique action of issuing an emergency report condemning DWP proposals to remove the right of appeal from Community Care Grants. A bill was prepared to replace the tribunal with the Secretary of State's own appointees. This tendency within DWP may not have disappeared.

At the same time DWP started to withdraw from the scrutiny of its decisions by the local tribunal. It had been routine for local offices to have appeals officers who checked decisions under appeal; revised them if need be and attended the hearing to explain and, if need be, defend the decision. This was an important part of the DWP's participation in the "statutory machinery for deciding claims". Appeals officers were exposed to outside thinking and arguments from Trade Union and Welfare Rights officers. They were able to relay information and advice back to the local decision-makers thus improving the quality of decision making generally.

Generally, and nationally, though without any specific ministerial authority, presenting officers gradually abandoned attendance at local tribunal hearings so their decisions were no longer open to this kind of scrutiny or influence.

This withdrawal from the statutory machinery means too many unnecessary appeal hearings. The appeals officer no longer asks on receipt of an appeal, 'Can I defend this decision before my local tribunal?' or 'Do I need further evidence?'

Example

Mr F was a refugee from Iraq who suffered PTSD and physical injuries from his torture by the then Government. On his PCA assessment he was awarded 6 physical and 5 mental points. This meant that for the Secretary of State's decision to be upheld the tribunal would have to be satisfied that not one of 14 separate descriptors applied to Mr F's mental health.

No realistic assessment is made. Instead a submission is written by someone who may never have seen a tribunal hearing. The writer's job is then complete and the file closed until a tribunal decision notice lands on someone else's desk a couple of months later. CSA and DCS recently admitted they had no mechanism for looking at new evidence which arrived in the interim. The scope for the PO to concede a claimant's case has vanished.

Running Away from Reality

These may seem like harsh or extravagant words to describe the decline in adjudication standards which has followed the trends which we have described; but DWP cannot escape from adjudication and good adjudication is rooted in justice, reason and reality. Trying to avoid adjudication, e.g. with the late claim rules, produces decisions which are an affront to any sense of fairness or reasonableness. The downgrading of adjudication means that staff start to see "evidence" as an end in itself; not as a means of making their decision accord with reality. They become used to making decisions which are unfair and indefensible. Claimants become used to thinking that only by going to an advisor who "knows what to say" can a fair outcome be achieved. So for example, it is quite common to find a disallowance of Incapacity Benefit holding good for only a matter of 3 or 4 days until the appellant, on advice, produces a sick note with a different diagnosis on it. The reality has not changed. The claimant is just as fit or unfit for work as (s)he always was. Even so benefit is re-instated.

Nowhere is the irrationality which results from the downgrading of adjudication more apparent than in the decision making for repeat claims to DLA. After the Social Security Act 1998 DWP promoted the message that past history was irrelevant; as were any developments after the decision had been taken. The result was "snapshot" adjudication.

At its worst in 1999-2001 DWP decision-makers thought they could take a decision on DLA or Incapacity Benefit without even consulting previous papers. So a claimant may have received DLA for 5 years or Incapacity Benefit for 10 but a decision on entitlement would now be taken in complete ignorance of the basis on which benefit had been awarded. After criticism from Commissioners and the tribunals relevant past information is now to some extent considered at least at tribunal level.

But the problem has not gone away:-

Examples

Mrs B was refused DLA after a medical examination from a DWP doctor. She appealed relying on evidence from her own doctor. The appeal was dismissed and some weeks later the tribunal issued reasons for not accepting the GP's evidence. However, a week after the tribunal hearing the appellant's welfare rights officer had put in a new claim accompanied by the GP evidence. DWP made an award without looking at the previous medical report or the tribunal decision.

Mrs C received an award of DLA because of breast cancer. On the repeat claim she filled in a form which, if true, would have justified renewal of the award. DWP, in reliance on a consultant's report which suggested progress to a recovery refused DLA and the appellant appealed. Seven weeks after the expiry of the award, DLA was re-instated at the highest rate because Mrs C was now accepted by her consultant as being terminally ill. However, DWP prepared the papers and proceeded to a tribunal hearing without once considering whether the latest information cast doubt on the reliability of the consultant's report which they had previously accepted.

Revisions and Supersessions

Very few DWP decision-makers understand these crucial concepts, introduced in 1999, and you cannot blame them.

The old adjudication principles were simple. Decisions awarding benefit taken within DWP or by tribunals are final – in the sense that they cannot be re-litigated through the courts; but they must be capable of being changed if circumstances alter or if an obvious mistake is made. The traditional solution to this problem was elegant. A decision, though final, could be reviewed if there was a change of circumstances since the decision or the decision itself was based on ignorance of or a mistake as to a material fact. This formula preserved any rights which had accrued to the citizen in matters of judgement or discretion whilst permitting the revisiting of a decision that was based on factual error.

The new regime of revision and supersession is not based on such coherent principle. It is instructive to read Chapter 3 of Volume 1 of the Decision Maker's Guide and to imagine what anyone would make of it. Regulation 7 Decisions and Appeals Regulations tells you the date from which a supersession should take effect. It now has 39 sub-paragraphs. There have been days and days of hearings in the Court of Appeal and before tribunals of Commissioners to try to find out the circumstances in which rights of appeal exist. It may well be necessary for the content of Social Security Legislation to be complex but the machinery should be simpler and based on sound adjudication principles – so that decision makers can understand it.

Reconsideration

The DMA reforms introduced in 1999 were supposed to stop cases from needlessly going to tribunal by introducing "reconsideration" – a third concept which in any one case may or may not include both revision and supersession. It would be interesting to discover whether there has in fact been any reduction in the percentage of appeals which reach the tribunal. What is clear to us is that there is no consistent interpretation throughout the Department of what a "reconsideration" means. Sometimes it seems to be suggested that unless new evidence has been produced then a decision should not be altered; sometimes that it is necessary to produce medical evidence; sometimes that it is necessary for the claimant to establish that the decision was not reasonable on the evidence available at the time.

Use of Medical Evidence

DWP seems to have a different approach to the use of the medical evidence depending on the benefit in issue:-

  1. DLA is still in theory "self-assessment" although decisions involving medical evidence are more common than they used to be. If the content of the claim form has diminished in importance then nothing has been done to diminish its size or complexity.
  2. Incapacity Benefit decision making also involves a complex form with medical input. Here, by contrast if there is a medical examination then the content of the form seems to be entirely disregarded.
  3. In Industrial Injury Benefit cases decision-makers seem to regard themselves as entirely bound by the contents of the Department's medical report.

Decision-making would improve if there were a coherent approach and if DWP routinely (with consent) obtained access to GP records now easily retrievable from the GP's computer.

Updating in Accordance with Case Law

Our suspicion is that this aspect of DWP adjudication is now seriously neglected. It is rare, for example, to see the important decisions of Moyna and Howker referred to in submissions concerning DLA and Incapacity Benefit respectively.

Some Rescue Remedies

DWP should make a commitment at ministerial level to the adjudication functions of the Secretary of State re-establishing the importance of adjudication for all the Department's Agencies. Each agency must develop lines of accountability for ownership of and responsibility for decision-making including the conduct of the appeal stage.

  • The Secretary of State should be represented by a PO at all tribunal hearings.
  • Each of the Agencies should establish one or more liaison groups to work with the appeal tribunal. They might meet once a quarter or once a year depending on the volume of work and should concern themselves with admin liaison; with the quality of adjudication; and the content of submissions
  • The President should consider whether his present annual report on adjudication standards fulfils its purpose or whether something more productive might result, with adequate funding, from the working of these liaison groups.
  • DWP should develop a Department-wide understanding of "reconsideration" based on the test of whether the Department is able to defend the present decision before a tribunal.
  • DCS should develop an approach to medical evidence based upon adjudication principles and should speed up its plans to have regard to GP computer case notes. The DLA claim pack should be revised and simplified.
  • Jobcentre Plus should consider how to develop an expertise in such difficult areas of adjudication as disposal of capital and beneficial ownership.
  • DWP, perhaps with assistance from TAS and the Commissioners, should develop new more coherent proposals for the use of the Secretary of State's regulation making power in connection with revisions and supersessions.
  • It may be that because the Commissioners now have jurisdiction only over errors of law, that it is less easy for them to produce judgements readily understood by local decision-makers. The President, in conjunction with DWP should consider whether Reg 36 Decisions and Appeals Regulations, which defines the composition of a tribunal, might not be revised to allow for a tribunal including, say, the President, a Regional Chairman and the Chief Medical Member, to produce guideline decisions on questions of difficulty. These could be produced after more extended hearings than are presently available to the tribunal. They would not be legally binding in the precedent sense on questions of law. That function is reserved to the Commissioners. But they might build up a set of guiding principles, assisted by the medical input not available to the Commissioners, similar to the way that the judiciary have built up tariffs for personal injury damages and for criminal sentencing.
  • DWP efforts to reduce the need for appeal hearings should recognise the importance of acting as 'Respondent' to the appeal able to react for example to the sort of ADR described in the Government White Paper. We suggest a pilot on structured conciliation for DLA using the appeal tribunal.